Proposal for a COUNCIL DECISION on the position to be adopted, on behalf of the European Union, in the sixtieth session of the Commission on Narcotic Drugs on the addition to the list of substances in Table I of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances
Date: 2017-02-28
Institutions: Directorate-General for Taxation and Customs Union, European Commission
Subjects: UN convention, UN technical commission, drug traffic, illicit trade, narcotic, revision of an agreement

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   EUROPEAN COMMISSION  Brussels, 28.2.2017  COM(2017) 119 final 2017/0049 (NLE)   Proposal for a COUNCIL DECISION on the position to be adopted, on behalf of the European Union, in the sixtieth session of the Commission on Narcotic Drugs on the addition to the list of substances in Table I of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances   
 
EXPLANATORY MEMORANDUM 

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CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

The  Commission  on  Narcotic  Drugs  (CND)  regularly  amends  the  list  of  substances  that  are 
annexed  to  the  United  Nations  (UN)  Convention  on  Illicit  Traffic  in  Narcotic  Drugs  and  
Psychotropic Substances of 1988 (the 1988 UN Convention) on the basis of recommendations 
of the International Narcotics Control Board (INCB). 

The EU is party to the 1988 UN Convention for questions which are dealt with in Article 12 
of the Convention1. Article  12 deals with  substances which are frequently used  in the illicit 
manufacture of narcotic drugs and psychotropic substances ('drug precursors').  

The  CND  is  a  commission  of  the  UN  Economic  and  Social  Council  (ECOSOC)  and  its 
functions and powers are inter alia set out in the 1988 UN Convention. It is made up of 53 
UN  Member  States  elected  by  ECOSOC.  12  Member  States  are  currently  members  of  the 
CND with the right to vote.2 The Union has an observer status in the CND.  

The  INCB    recommended  on  1  February  2017  to  add  two  substances,  namely  4-anilino-N-
phenethylpiperidine (ANPP) and N-phenethyl-4-piperidone (NPP), to Table I of the 1988 UN 
Convention. 

Changes to the Tables of the 1988 UN Convention have direct repercussions for the scope of 
application  of  Union  law  in  the  area  of  drug  precursor  control  as  substances  added  to  the 
Tables  of  the  1988  UN  Convention  are  to  be  incorporated  into  the  Union  law3.  The 
Commission has been empowered to adopt delegated acts in order to ensure this. 

It is necessary that Member States prepare the meeting of the CND when it is called to decide 
on the scheduling of substances by reaching a common position in the Council. Such position, 
due to the limitations intrinsic to the observer status of the Union should be expressed by the 
Member  States  that  are  currently  members  of  the  CND,  acting  jointly  in  the  interest  of  the 
Union  within  the  CND.  The  Union,  which  only  has  observer  status  in  the  CND,  would  not 
vote in the CND. 

To this end, the Commission is proposing a position to be adopted, on behalf of the European 
Union, in the sixtieth session of the CND taking place in Vienna from 13 to 17 March 2017 
on the scheduling of substances under the 1988 UN Convention.   

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Council Decision of 22 October 1990 concerning the conclusion, on behalf of the European Economic 
Community,  of  the  United  Nations  (UN)  Convention  on  Illicit  Traffic  in  Narcotic  Drugs  and  
Psychotropic Substances of 1988. 
Austria,  Belgium,  Croatia,  Czech  Republic,  France,  Germany,  Hungary,  Italy,  Netherlands,  Slovakia, 
Spain, United Kingdom. 
COUNCIL  REGULATION  (EC)  No  111/2005  of  22  December  2004  laying  down  rules  for  the 
monitoring of trade between the Union  and third countries in drug precursors (OJ L 22, 26.1.2005, p. 1) 
and  REGULATION  (EC)  No  273/2004  OF  THE  EUROPEAN  PARLIAMENT  AND  OF  THE 
COUNCIL of 11 February 2004 on drug precursors (OJ L 47, 18.2.2004, p. 1). 

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2. 

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LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

The  legal  basis  for  this  proposal  is  Article  207  in  conjunction  with  Article  218(9)  of  the 
Treaty on the Functioning of the European Union (TFEU). 

Scheduling of precursors for the purposes of monitoring trade in these substances is a matter 
that  relates  to  the  common  commercial  policy  and  Article  207  (3)  TFEU  states  that  where 
agreements  with  one  or  more  third  countries  or  international  organisations  need  to  be 
negotiated  and  concluded,  Article  218  shall  apply,  subject  to  the  special  provisions  of  this 
Article. 

Article 218(9) TFEU applies regardless of whether the Union is a member of the body or a 
party  to  the  agreement  at  issue.  The  CND  is  "a  body  set  up  by  an  agreement"  within  the 
meaning  of  this  Article,  given  that  it  is  a  body  that  has  been  given  specific  tasks  under  the 
1988 UN Convention.  

The CND's scheduling-decisions are "acts having legal effects'' within the meaning of Article 
218(9) TFEU. According to the 1988 UN Convention decisions of the CND become binding, 
unless a party has submitted the decision for review to ECOSOC within the applicable time-
limit.4 The decisions of ECOSOC on the matter are final.  

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Subsidiarity 

Not applicable. 

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Proportionality 

The  proposal  is  proportionate  and  does  not  go  beyond  what  is  necessary  to  achieve  the 
objectives as it addresses new drug precursors that are of concern for the Union. 

• 

Choice of the instrument 

The use  of a  Council Decision  is required by Article 218(9) TFEU in  order to  establish the 
position to be adopted on the Union's behalf in a body set up by an international agreement. 

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Article 12(7) of the 1988 UN Convention 

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2017/0049 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be adopted, on behalf of the European Union, in the sixtieth session of 
the Commission on Narcotic Drugs on the addition to the list of substances in Table I of 
the United Nations Convention against Illicit Traffic in Narcotic Drugs and 
Psychotropic Substances  

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 207, in conjunction with Article 218(9) thereof, 

Having regard to the proposal from the European Commission, 

Whereas: 

(1)  The  United  Nations  Convention  against  Illicit  Traffic  in  Narcotic  Drugs  and 
Psychotropic  Substances  of  1988  ('the  Convention')  was  concluded  by  the  Union  by 
Council Decision 90/611/EEC5 and entered into force on 11 November 1990.  

(2)  Pursuant  to  Article  12(2)  to  (7)  of  the  Convention,  substances  may  be  added  to  the 

Tables of the Convention in which drug precursors are listed. 

(3)  The  Commission  on  Narcotic  Drugs  should,  during  its  sixtieth  session  from  13  to  17 
March 2017 in Vienna, take a decision on the addition of two new substances to Table I 
of that Convention.  

(4)  The Union has observer status in the Commission on Narcotic Drugs of which currently 
12 Member States of the Union are members with the right to vote. As decisions on the 
addition  of  new  substances  to  Table  I  of  the  Convention  fall  under  the  exclusive 
competence of the Union, it is necessary for the Council to authorise the Member States 
to express the position of the Union on the addition to the list of substances in Table I of 
the Convention. 

(5)  According  to  the  assessment  of  the  International  Narcotics  Control  Board,  two 
substances,  4-anilino-N-phenethylpiperidine  (ANPP)  and  N-phenethyl-4-piperidone 
(NPP) are  frequently used in the illicit manufacture of fentanyl and are highly suitable 
for  the  illicit  manufacture  of  fentanyl  and  a  number  of  fentanyl  analogues  which  are 
highly  potent  synthetic  opioids.  There  is  evidence  that  the  volume  and  extent  of  the 
illicit  manufacture  of  fentanyl  and  fentanyl  analogues  poses  serious  public  health  or 
social  problems  so  as  to  warrant  the  placing  of  these  substances  under  international 
control. 

(6)  Accordingly, on 1 February 2017 the International Narcotics Control Board  

recommended to the  Commission on Narcotic Drugs to add ANPP and NPP  to Table I 
of the Convention. 

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Council Decision of 22 October 1990 concerning the conclusion, on behalf of the European Economic 
Community,  of  the  United  Nations  Convention  against  Illicit  Traffic  in  Narcotic  Drugs  and 
Psychotropic Substances (OJ L 326, 24.11.1990, p. 56). 

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(7) 

Illicitly  manufactured  fentanyl  and  fentanyl  analogues  have  caused  significant  public 
health and social problems in certain Member States.  

(8)  Therefore, the Member States of the Union should take the position in the Commission 

on Narcotic Drugs to add ANPP and NPP to Table I of the Convention, 

HAS ADOPTED THIS DECISION:  

Article 1 

The position to be taken on behalf of the Union by the Member States in the sixtieth session 
of the Commission on Narcotic Drugs from 13 to 17 March 2017 shall be the following : 

4-anilino-N-phenethylpiperidine and N-phenethyl-4-piperidone are to  be included in Table I 
of the Convention. 

That position shall be expressed by the Member States which are members of the Commission 
of Narcotic Drugs, acting jointly. 

This Decision is addressed to the Member States.  

Article 2  

Done at Brussels, 

For the Council 
The President 

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